Excerpt: - - the value of the subject-matter in dispute is well over rs. the learned advocate for the income tax commissioner contends before us that he is, as of right, entitled to appeal to his majesty in council under section 66-a, sub-section (3), income tax act, xi of 1922. in our opinion this contention is not well-founded......on custom or grant and not co-parcenary interest.the main question in the case is whether the income received by the younger brother is income received by him in his capacity of a member of an undivided hindu family or whether it is received by him by virtue of some other right. the question is of some general importance, and, in our opinion, requires an authoritative pronouncement. the cases cited on behalf of the respondent are case not dealing directly with the right to claim maintenance but mostly with the rights of succession to an impartible estate whereas rama rao v. rajah of pittapur was a case relating to maintenance, but certain observations made in it, have been subsequently explained away by their lordships of the privy council. the last mentioned case of shibad prasad.....

Judgment:

. - This is an application for leave to appeal to His Majesty in Council in an income tax matter. The value of the subject-matter in dispute is well over Rs. 10,000 and the opinion of the Income Tax Commissioner has not been accepted by the High Court on reference made to it. The learned Advocate for the Income Tax Commissioner contends before us that he is, as of right, entitled to appeal to His Majesty in Council under Section 66-A, Sub-Section (3), Income Tax Act, XI of 1922. In our opinion this contention is not well-founded. The right of appeal is conferred only by Sub-Section (2) which provides that an appeal shall lie to His Majesty in Council in any case which the High Court certificates to be a fit one for appeal. This sub-section does not go on to say, as is provided in Section 109(a) and (b) that the appeal shall lie from any decree or final order passed by the High Court in the exercise of its final appellate or original civil jurisdiction. It follows that the right of appeal is confined only to such cases as are certified to be fit the High Court.

Sub-section (3) is quite different and lays down that the provisions of the Act, relating to appeals shall apply in the case of appeals from decrees. That obviously deals with the procedure to be applied to appeals where such an appeal lies under the preceding sub-section (2). We accordingly hold that no appeal would lie unless the case can be certified as being fit for appeal to His Majesty in Council.

The assessee is a younger brother of the Maharaja of Vizianagram, who holds an impartible Raj. Under certain deeds a monthly allowance of Rs. 10,000 is paid by the Raja to the younger brother, and it is this monthly allowance which is sought to be taxed by the Income Tax Officer. Under Section 12, Income Tax Act, all incomes are taxable unless otherwise exempted. The assessee claims exemption under Section 14(1), under which any sum which is received by a member of a Hindu undivided family is exempted. The question in this case therefore was whether this income is a sum received by the younger brother, 'as a member of the Hindu undivided family.' The Bench, differing from the view expressed by the Income Tax Officer came to the conclusion that the monthly allowance was such an income. This view has also been followed by the Madras High Court in Commissioner of Income Tax, Madras v. Narayana Gajapathi. A similar view has been recently expressed by the Lahore High Court in Krishan Kishore v. Commissioner of Income Tax. These cases have relied strongly on the observations of their Lordships of the Privy Council in Raja Yarlagadda Mallikarjuna Prasada Naidu v. Yarlagadda Durga Prasada Naidu, Baijnath Prasad Singh v. Tej Bali Singh and Konammal v. Annadana Jadaya Gounder. The learned Counsel for the assessee urges before us that the allowance is received by the younger brother as a member of the undivided family. On the other hand, the learned for the applicant relies on the second Pittapur case of Rama Rao v. Raja of Pittapur and a more recent case of Shiba Prasad Singh v. Prayag Kumari Debee, and contends that the right to maintenance is based on custom or grant and not co-parcenary interest.

The main question in the case is whether the income received by the younger brother is income received by him in his capacity of a member of an undivided Hindu family or whether it is received by him by virtue of some other right. The question is of some general importance, and, in our opinion, requires an authoritative pronouncement. The cases cited on behalf of the respondent are case not dealing directly with the right to claim maintenance but mostly with the rights of succession to an impartible estate whereas Rama Rao v. Rajah of Pittapur was a case relating to maintenance, but certain observations made in it, have been subsequently explained away by their Lordships of the Privy Council. The last mentioned case of Shibad Prasad Singh v. Prayag Kumari Debee was also a case of succession, although the rights of co-parcenners in an impartible estate were discussed at page 1413 (of 39 Calcutta).

The question whether the income received as maintenance allowance is taxable or not has been the subject of decision in India, but has not so far been considered by their Lordships of the Privy Council. As it is an important matter affecting public revenue and is question which might frequently arise, we think that the case is a fit one for appeal to His Majesty in Council under Section 66-A, Sub-Section (2). We certify accordingly. We fix Rs. 200 as fee for the Counsel for the Income Tax Commissioner.